Australian College of Teacher Aides and Childcare Pty Ltd v Rachel Yates

[2024] FWC 2736

[2024] FWC 2736

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision
s.606—Stay of decision

Australian College of Teacher Aides and Childcare Pty Ltd
v

Rachel Yates

(C2024/6780)

JUSTICE HATCHER, PRESIDENT SYDNEY, 2 OCTOBER 2024

Appeal against decision of Deputy President Lake at Brisbane on 16 September 2024 in matter number U2024/7886 – stay application – no arguable case – balance of convenience does not favour stay – stay refused.

1. This is an edited version of the ex tempore decision delivered at the conclusion of the hearing of this matter on 1 October 2024.

1. Australian College of Teacher Aides and Childcare Pty Ltd has appealed an interlocutory decision made by Deputy President Lake in an unfair dismissal application (matter U2024/7886) to substitute another corporate entity, National College of Australia Pty Ltd, for itself as the respondent.

1. The factual background may briefly be stated. On 8 July 2024, Ms Rachel Yates filed an unfair dismissal application in which she identified her former employer as the appellant. However, the dismissal letter attached to the application was under the letterhead of ‘National College of Australia’. In response to the application, the appellant sent correspondence to the Commission denying that it had ever employed Ms Yates and seeking that the application be dismissed on this basis. This position was maintained in its Form F3 response filed with the Commission on 22 August 2024. In submissions referred to in that response, the appellant pointed to material suggesting that the correct employer was National College of Australia Pty Ltd.

1. On 28 August 2024, Ms Yates applied to amend the identity of the respondent to ‘National College of Australia Pty Ltd’. This was opposed by the appellant, which pressed for the dismissal of the application. On 16 September 2024, the Deputy President granted the application and ordered the amendment sought. The matter is listed for hearing on 11 October 2024.

1. The appellant appeals on grounds including a denial of procedural fairness to itself and the new respondent, significant prejudice and unfairness to the new respondent, a lack of jurisdiction and an error of law. It seeks a stay of the decision pending the hearing and determination of the appeal. This decision is concerned with the stay application.

1. The principles applicable to stay applications are well-established. The appellant must first satisfy the Commission that it has an arguable case, with some reasonable prospects of success, in respect of both the question of permission to appeal and the substantive merits of the appeal. Second, the appellant must demonstrate that the balance of convenience weighs in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.

1. I am not satisfied in respect of either element here. The appeal does not appear to me to have any prospects of success. It is not apparent to me that the appellant has standing to appeal under s 604 of the FW Act as a person aggrieved. The effect of the decision is that it has been removed from the proceedings consistent with its own position as to the identity of Ms Yates’ employer and, consequently, is no longer at risk of any order being made against it in the proceedings. It cannot claim a grievance on behalf of the corporate entity which has been substituted as the respondent, noting that the appellant contends that this entity is not related to it. Even if the appellant has standing, I do not consider that there is any real likelihood that it would obtain permission to appeal for the same reasons.

1. The balance of convenience does not favour the grant of a stay. There is no prejudice to the appellant if a stay is not granted because, as stated, the effect of the order the subject of the appeal is that it has been removed from the proceedings and cannot now be the subject of any further order. The appellant has raised an issue about whether it has the capacity to apply for costs ‘thrown away’ as a result of its participation in Ms Yates’ application to date if a stay is not granted. It does not seem to me that anything that the Deputy President has done would operate to prevent the appellant making any such application before him. However, the merits of any such costs application are another matter entirely. Further, if the stay is not granted, Ms Yates’ application can now go forward against the correct respondent.

1. For these reasons, the application for a stay is dismissed.

PRESIDENT

Appearances:

A Cox for Australian College of Teacher Aides and Childcare Pty Ltd.
A Santelises for Rachel Yates.

Hearing details:

2024.

Sydney with video link using Microsoft Teams:
1 October.

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